Monday, 31 October 2011

T 226/07 – Exploring Strange Places

The patent proprietor filed an appeal against the decision of the Opposition Division revoking the opposed patent.

He filed a new request during the oral proceedings (OPs) before the Board.

Claim 1 as amended read (in English translation):
Motor vehicle having B columns, in particular of the coupé or cabriolet type (1;101), comprising side walls (3) delimiting the occupants’ space below a window breast (16), the B columns being arranged within the vertical extent of the side walls, wherein vertically oriented reinforcement profiles (5) are assigned to the B columns in order to absorb forces acting laterally on the vehicle (1;101), wherein there is at least one cantilever arm extending substantially transversely to the vehicle between the B columns, wherein the cantilever arm (6) is connected to the vehicle via a connection area (15) that is separated from the lower end of the reinforcement profile (5), characterised in that a cantilever arm (6) extends transversely to the reinforcement profiles (5) towards the vertical longitudinal centre plane (7) of the vehicle and in that the cantilever arms (6) are separated from one another by a central joint (9) in the region of the vertical longitudinal centre plane (7). (my emphasis)

The opponent pointed out that this request was late filed and should not be admitted, in particular because the “central joint” feature had not been part of any of the claims on file before.

What I found interesting in this decision is how the Board dismissed this argument.

*** Translation of the German original ***

[2] As submitted by the [opponent], the feature “by a central joint”, which is an addition with respect to claim 1 of auxiliary request 4 filed together with the statement of grounds of appeal, has been extracted from the description of the patent.

However, the skilled person understands from the introductory part of the description of the patent (see, in particular, column 2, lines 26 to 43) that the use of a central joint is an important aspect of the inventive idea (Erfindungsgedanke) disclosed in the patent in the context of the problem mentioned therein (column 1, lines 40 to 50: reducing repair costs).

Moreover, one may note that this feature corresponds to the subject-matter of dependent claim 3 of the priority document […]. In view of the fact that the question of priority was extensively discussed during the opposition proceedings, the [opponent] necessarily knew the significance of this feature. Moreover, the added feature limits the subject-matter of independent claim 1 of the previous auxiliary request 4 in a direction that corresponds to the disclosed inventive idea (cf. T 1685/07).

Therefore, in the present circumstances of this case, the Board did not see any incentive not to admit this request when exercising its discretion pursuant to Article 13(1) RPBA. Nor does the Board consider that the requirements for postponing the OPs pursuant to Article 13(3) are fulfilled in the present case because the subject-matter as limited does not create the need for any particular preparation in view of the OPs.

Should you wish to download the whole decision (in German), just click here.

The file wrapper can be found here.